Chepkorir (Suing as legal representative of the Estate of Paul Rotich Ngeny) v Yegon & another (Environment & Land Case E018 of 2022) [2025] KEELC 865 (KLR)
The bottom line
#The Environment and Land Court in Kericho struck out a defendant's attempt to have a land case dismissed, ruling the argument relied on facts needing evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is fatally defective for non-compliance with Section 18(2) of the Land Registration Act
The objection was premature; the matter had already been referred to the Land Registrar and jurisdiction can only be determined after the Registrar files a report
Section 18(2) bars courts from entertaining boundary disputes unless boundaries have been determined under that section. On 9th November 2023 the court referred the matter to the Land Registrar Kericho to determine the position on the ground and file a report, upon which jurisdiction would be determined. Only a County Surveyor's report exists on record; the Land Registrar has not filed a report. Until then it cannot be said with certainty that the dispute is a boundary dispute; the Plaintiff maintains it is one of encroachment. The objection was therefore premature.
Whether the suit is res judicata given Kericho CMELC No. E021 of 2020
Res judicata cannot be determined on a preliminary objection as it requires analysis of pleadings by way of affidavit evidence
Section 7 of the Civil Procedure Act requires that the matter in the former suit was heard and finally decided. The 2nd Defendant contends the issues were adjudicated in Kericho CMELC No. E021 of 2020. Relying on George Kamau Kimani, the court held that res judicata is best raised by notice of motion with pleadings annexed, not by preliminary objection. The Defendant also did not annex the pleadings and decision of the lower court. The ground therefore failed.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot depend on facts to be ascertained or proved by evidence.
- Res judicata cannot be raised by way of preliminary objection because it requires analysis of pleadings presented by way of affidavit evidence.
- Where a dispute is referred to the Land Registrar under Section 18 of the Land Registration Act, the question of the court's jurisdiction should await the Registrar's report.
Court orders
#- 1.The 2nd Defendant's preliminary objection dated 7th May, 2024 is struck out with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkorir (Suing as legal representative of the Estate of Paul Rotich Ngeny) v Yegon & another (Environment & Land Case E018 of 2022) [2025] KEELC 865 (KLR)", Case Analysis (2025). Not stated in judgment (Kericho ELC suit; relates to Kericho CMELC No. E021 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/865/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.